FILED
Mar 20 2020, 9:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE JOE
Andrew A. Crosmer JONES, JR.
Rubino, Ruman, Crosmer & Polen Shawn C. Swope
Dyer, Indiana Cassandra J. Neal
Swope Law Offices, LLC
Dyer, Indiana
ATTORNEY FOR APPELLEE
ALLSTATE INSURANCE
COMPANY
Harold G. Hagberg
Hagberg & Associates
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marlo Harris, March 20, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-1196
v. Appeal from the Lake Superior
Court
Joe Jones, Jr., and Allstate The Honorable Bruce D. Parent,
Insurance Company, Judge
Appellees-Defendants Trial Court Cause No.
45D11-1406-CT-121
Crone, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 1 of 10
Case Summary
[1] Marlo Harris filed a complaint for damages against Joe Jones, Jr., and Allstate
Insurance Company (collectively “Defendants”) following a motor vehicle
collision. A jury returned a verdict in favor of Harris in the amount of $10,000.
The trial court subsequently entered an order assessing attorney’s fees against
Harris in the amount of $1000 due to her rejection of Jones’s qualified
settlement offer. Unsatisfied with these results, Harris now appeals, raising
several issues that revolve around whether the trial court abused its discretion in
instructing the jury and in excluding and admitting certain evidence. Finding
reversible instructional error, we reverse and remand for a new trial on damages
only. We also vacate the trial court’s assessment of fees against Harris.
Facts and Procedural History
[2] In the early morning hours of November 30, 2013, Harris was driving a vehicle
owned by her grandmother on Interstate 80 in Hammond when she was
involved in a collision with Jones. Jones struck the back of Harris’s vehicle,
causing minimal damage to Harris’s vehicle. Thereafter, Harris filed a
complaint for damages against Jones and her grandmother’s insurer, Allstate,
alleging negligence, recklessness, and willful and wanton misconduct against
Jones and breach of contract against Allstate. Specifically, Harris alleged that
Jones negligently and recklessly caused the collision to occur, and that he
committed misconduct by driving while intoxicated and impaired, failing to
keep a proper lookout, and endangering the welfare of others. Harris further
alleged that Allstate breached the contract of insurance and was liable for any
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 2 of 10
damages caused by Jones as an uninsured/underinsured motorist. Harris
sought both compensatory and punitive damages.
[3] A jury trial began on May 8, 2019. Portions from the transcript of the video
deposition of Dr. Ilesh Kurani were read to the jury. Dr. Kurani testified that
her predecessor, Dr. Patel, Harris’s treating physician, saw Harris after the
accident and diagnosed her with “acute lumbar disk disease with left
radiculopathy[,]” which is a soft tissue injury that “c[a]me on suddenly without
any prior chronic incidence onset.” Tr. Vol. 2 at 152, 156, 198. Dr. Patel
referred Harris for an MRI in order to determine the cause of her radicular
symptoms. Reviewing Harris’s medical records, Dr. Kurani confirmed that
Harris never completed the MRI because she “became claustrophobic, so could
not finish the test.” Id. at 151. Dr. Kurani stated that an MRI is a diagnostic
tool that “could” have shown whether “there was a disk injury” and/or
whether there were “pre-existing degenerative” spinal issues. Id. at 195.
During trial, Harris testified that she experienced lower back pain following the
accident that continued to worsen, so she went to see Dr. Patel. Harris stated
that Dr. Patel treated her with pain medication and injections. Although Dr.
Patel originally placed certain restrictions upon her return to work, Harris was
eventually released by Dr. Patel “with no restrictions” in February 2014. Id. at
157. Harris admitted that while she continued to experience pain, she did not
have any medical treatment during the four years prior to trial. She stated that
not a day goes by when she does not have back pain and that she also often
experiences tingling and numbness in her legs.
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 3 of 10
[4] After hearing from additional witnesses and closing arguments of counsel, the
jury found Jones to be 100% at fault and awarded Harris compensatory
damages in the amount of $10,000. The jury awarded Harris zero punitive
damages. Jones subsequently filed a motion for attorney’s fees pursuant to
Indiana Code Section 34-50-1-6 based upon Harris’s rejection of a pretrial
settlement offer of $25,000. The trial court granted the motion and awarded
$1000 in fees to Jones. This appeal ensued.
Discussion and Decision
The trial court abused its discretion and committed reversible
error in giving a failure to mitigate instruction to the jury.
[5] Among other things, Harris asserts that the trial court abused its discretion in
instructing the jury regarding her alleged failure to mitigate damages.
Specifically, Defendants proffered a pattern final jury instruction that provided,
Marlo Harris must use reasonable care to minimize her damages
after she is injured. Marlo Harris may not recover for any item of
damage that she could have avoided through the use of
reasonable care. Defendants have the burden of proving by the
greater weight of the evidence that Marlo Harris failed to use
reasonable care to minimize her damages. Do not consider
failure to minimize damages as fault. Rather you may consider
failure to minimize damages [to] reduce the amount of damages
that Marlo Harris claims.
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 4 of 10
Tr. Vol. 3 at 99. 1 Harris objected and asserted that there was insufficient
evidence to support the giving of a failure-to-mitigate instruction. Harris’s
counsel argued that Defendants had presented insufficient evidence of
causation, that is, they failed to prove that Harris’s post-injury conduct
increased her harm, and if so, by how much. The trial court overruled the
objection and permitted the instruction to be read to the jury.
[6] When reviewing a trial court’s decision to give or refuse a tendered instruction,
we consider whether: “1) the instruction correctly states the law; 2) the evidence
in the record supports giving the instruction, and 3) the substance of the
instruction is covered by other instructions.” Humphrey v. Tuck, 132 N.E.3d 512,
515 (Ind. Ct. App. 2019) (citation omitted). “In determining whether sufficient
evidence exists to support an instruction, we will look only to that evidence
most favorable to the appellee and any reasonable inferences to be drawn
therefrom.” Id. This Court reviews a trial court’s decision to give or refuse to
give an instruction only for an abuse of discretion. Id.
[7] Regarding failure to mitigate specifically, our supreme court has explained,
[T]he principle of mitigation of damages addresses conduct by an
injured party that aggravates or increases the party’s injuries. ....
[F]ailure to mitigate damages is an affirmative defense that may
reduce the amount of damages a plaintiff is entitled to recover
after liability has been found. Put simply, a plaintiff in a
negligence action has a duty to mitigate his or her post-injury
1
See IND. MODEL CIVIL JURY INSTRUCTION 935 (2019).
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 5 of 10
damages, and the amount of damages a plaintiff is entitled to
recover is reduced by those damages which reasonable care
would have prevented. The defendant bears the burden to prove
that the plaintiff has not used reasonable diligence to mitigate
damages. The defendant’s burden includes proof of causation,
that is, the defendant must prove that the plaintiff’s unreasonable
post-injury conduct has increased the plaintiff’s harm, and if so,
by how much.
Willis v. Westerfield, 839 N.E.2d 1179, 1187 (Ind. 2006) (citations and quotation
marks omitted).
[8] In short, “[t]he affirmative defense of failure to mitigate damages has two
elements, and as to both the defendant bears the burden of proof by a
preponderance of the evidence.” Id. at 1188. “First, the defendant must prove
that the plaintiff failed to exercise reasonable care to mitigate his or her post-
injury damages.” Id. Next, “the defendant must prove that the plaintiff’s failure
to exercise reasonable care caused the plaintiff to suffer an identifiable item of
harm not attributable to the defendant’s negligent conduct. “It is not enough to
establish that the plaintiff acted unreasonably.” Id. The defendant must
establish “resulting identifiable quantifiable additional injury.” Id.
[9] Here, even assuming that there was sufficient evidence from which the jury
could have determined that Harris failed to exercise reasonable care to mitigate
her post-injury damages, we find a complete lack of evidence on the second
element, which required Defendants to point to a resulting identifiable
quantifiable injury. The only expert medical testimony presented at trial was
the transcript of the video deposition of Dr. Kurani. In reviewing medical
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 6 of 10
records from Harris’s former physician, Dr. Patel, Dr. Kurani confirmed that
Harris did not complete an MRI that was recommended by Dr. Patel following
the accident. Dr. Kurani was not asked whether and never suggested that
Harris’s failure to obtain an MRI or to seek additional medical care caused her
to suffer additional injury or any identifiable item of harm not attributable to
the accident.
[10] Defendants 2 argue that expert testimony was not required to meet their burden
of proof on the second element, and that the lay jury could simply conclude
based upon the evidence presented that Harris’s post-injury conduct aggravated
or increased her injuries. Defendants are correct that although expert testimony
will often be required to establish that the plaintiff’s conduct caused additional
harm, and the amount of such harm, expert testimony is not always required.
Willis, 839 N.E.2d at 1188. Indeed, whether a failure-to-mitigate defense
requires expert medical testimony to establish causation must be resolved on a
case-by-case basis. Id. at 1189.
[11] As a general matter, expert testimony is required where the question involves
medical factors beyond the common knowledge of a layperson such that the
jury could only indulge in speculation in making a finding based thereon. Id.
But, “on medical matters which are within the common experience,
observation, or knowledge of [laypersons], no expert testimony is required to
2
Although Jones and Allstate filed separate briefs and make separate arguments on appeal, they make
similar arguments in this regard, so we need not address their arguments separately.
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 7 of 10
permit a conclusion on causation.” Id. In other words, in many cases, medical
expert testimony will be necessary to establish whether separate injuries are
attributable to the defendant’s negligence or flow from a plaintiff’s post-injury
failure to follow advice as to treatment. Id. But in other cases, a lay juror can
determine that a particular item of harm was caused by a plaintiff’s
unreasonable post-injury disregard of treatment advice. Id. In making this
determination, the trial court should consider the nature of the medical question
presented and, in particular, whether the matter is within the common
experience, observation, or knowledge of laypersons. Id.
[12] The parties agree that Harris’s alleged injuries (back and radicular
pain/numbness) are subjective in nature, rather than objective, because she
perceived the injuries and reported them to her doctor, but the injuries are not
ones the doctor could observe. See Martin v. Ramos, 120 N.E.3d 244, 250 (Ind.
Ct. App. 2019) (explaining difference between subjective and objective injuries).
We have held that where a plaintiff’s injuries are subjective in nature, expert
medical testimony is required to prove causation. Topp v. Leffers, 838 N.E.2d
1027, 1033 (Ind. Ct. App. 2005), trans. denied (2006). This same principle
applies whether we are talking about causation in failure to mitigate or
causation in the plaintiff’s case. Willis, 839 N.E.2d at 1188. Accordingly, we
conclude that expert testimony was necessary in this case to establish whether
Harris suffered increased identifiable quantifiable harm that was not attributable
to Jones’s negligence but instead flowed from Harris’s post-injury conduct.
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 8 of 10
[13] Regardless, we have a complete lack of any evidence, expert or otherwise, that
additional harm was caused by Harris’s post-injury conduct, much less the
amount of such harm. In other words, there was no evidence of a separate,
discrete, identifiable harm caused by Harris’s allegedly unreasonable post-injury
conduct or how much damage was caused or proximately caused by this
conduct. The only evidence before the jury was this: Harris felt pain after the
accident, she did not participate in the diagnostic testing recommended by her
doctor, she eventually returned to work, and she did not seek further medical
treatment after February 2014 despite continuing to feel pain. Absent even a
scintilla of evidence that Harris’s behavior resulted in an “identifiable
quantifiable additional injury,” a failure-to-mitigate instruction was wholly
unwarranted. We conclude that the trial court abused its discretion in giving
such an instruction.
[14] Our supreme court has explained that instructional error is subject to a
harmless-error analysis, which provides that an “erroneous jury instruction
merits reversal if it could have formed a basis for the jury’s verdict.” Fleetwood
Enter., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492, 495 (Ind. 2001). 3 Because
the jury here issued a general verdict and we cannot discern whether Harris’s
3
In Simmons v. Erie Insurance Exchange, Inc., 891 N.E.2d 1059, 1071 (Ind. Ct. App. 2008), this Court noted
that in addition to the harmless error standard provided by Fleetwood, our supreme court has stated that “one
seeking a new trial on the basis of an improper jury instruction must show ‘a reasonable probability that
substantial rights of the complaining party have been adversely affected.’” Elmer Buchta Trucking, Inc. v.
Stanley, 744 N.E.2d 939, 944 (Ind. 2001). We note that the jury awarded compensatory damages to Harris
that were significantly below the amount of the qualified settlement offer. This indicates a reasonable
probability that the failure-to-mitigate instruction adversely affected her substantial rights. Thus, we conclude
that reversal would be warranted here under either standard.
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 9 of 10
damages were reduced due to her alleged failure to mitigate, the erroneous
instruction “could have” formed the basis for the compensatory damages
award. Accordingly, we reverse and remand for a new trial on damages only. 4
See, e.g., Willis, 839 N.E.2d at 1190 (reversing and remanding for new trial on
damages due to erroneous failure-to-mitigate instruction); Humphrey, 132
N.E.3d at 517 (same); Buhring v. Tavoletti, 905 N.E.2d 1059, 1068 (Ind. Ct. App.
2009) (same). We also vacate the trial court’s order assessing $1000 in
attorney’s fees, expenses, and costs against Harris and in favor of Jones because
the damages award underlying that assessment has been reversed. 5
[15] Reversed and remanded.
May, J., and Pyle, J., concur.
4
Harris also asserts that the trial court committed reversible error in the admission and exclusion of certain
evidence during trial. Because we reverse, and because those evidentiary issues may or may not arise on
remand, we decline to address them. Indeed, a review of Harris’s specific claims reveals that each of the trial
court’s rulings was made in the specific trial context in which those items of evidence were offered, and that
context, as well as the parties’ arguments in favor of and opposing admission or exclusion, could surely
change upon remand. A cardinal principle of the judicial function is that courts should not issue advisory
opinions but instead should decide cases only on the specific facts of the particular case and not on
hypothetical situations. Snyder v. King, 958 N.E.2d 764, 786 (Ind. 2011).
5
Indiana Code Section 34-50-1-6 provides that attorney’s fees, expenses, and costs of not more than $1000
may be awarded to the offeror of a qualified settlement offer (“QSO”) if the recipient of the QSO receives a
final judgment that is less favorable than the terms of the QSO. As noted earlier, Harris received a QSO of
$25,000 and a final judgment of only $10,000. Jones’s App. Vol. 2 at 2, 6. However, that final judgment has
been reversed.
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 10 of 10